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United States v. McGregor

United States District Court, D. Massachusetts

January 10, 2017

United States of America,
v.
Melvin McGregor Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         Defendant Melvin McGregor (“defendant”) pled guilty in May, 2009, to one count of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendant was originally sentenced as armed career criminal to 188 months incarceration followed by three years of supervised release.

         In June, 2016, defendant petitioned to vacate his sentence pursuant to 28 U.S.C. § 2255 based upon the decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”). The government was granted an extension of time to respond to the petition but missed the court-imposed deadline despite a posted reminder on the docket. It belatedly moved for an additional extension of time and filed its opposition to the petition on September 16, 2016. The government was admonished for its dilatory conduct and the Court allowed defendant's petition and vacated his sentence in October, 2016.

         Initially scheduled as a re-sentencing, the Court held a hearing on December 22, 2016, during which the parties debated defendant's status as an armed career criminal. Because the determination of that issue is critical to the re-sentencing and the subject of significant current jurisprudential debate, the Court postponed the re-sentencing and took the matter under advisement.

         Defendant's status under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is the subject of this memorandum.

         I. The ACCA Predicate Offenses at Issue

         The following four offenses were identified in the 2009 Pre-sentence Report (“PSR”) as predicate offenses under the ACCA:

1) Possession with Intent to Distribute a Class A Controlled Substance (¶ 43 of the PSR);
2) Possession with Intent to Distribute a Class A Controlled Substance (¶ 45);
3) Assault and Battery; Assault and Battery with a Dangerous Weapon (¶ 46) and
4) Armed Assault with Intent to Murder; Assault and Battery with a Dangerous Weapon (¶ 49).

         The two drug-related offenses are not challenged in defendant's § 2255 petition. Defendant contends, however, that the convictions for assault and battery with a dangerous weapon and armed assault with intent to murder are not ACCA predicate offenses.

         A. Assault and Battery with a Dangerous Weapon

         Defendant's reliance on United States v. Fish, 758 F.3d 1 (1st Cir. 2014), for the proposition that assault and battery with a dangerous weapon (“ABDW”) is not an ACCA predicate offense is no longer well-founded. The First Circuit Court of Appeals (“First Circuit”) has since held that its language in Fish with respect to whether ABDW is a crime of violence under the “force clause” of the ACCA was dicta. United States v. Fields, 823 F.3d 20, 35 n.12 (1st Cir. 2016). Moreover, on December 1, 2016, the First Circuit concluded that an intentional form of ABDW is a crime of violence within the meaning of the ACCA. United States v.Tavares, 843 F.3d 1, 13 (1st Cir. 2016). The First Circuit ...


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